Understanding the Philadelphia Summary Diversion Program

When someone makes a mistake, gets into trouble with the law, and gets a criminal record, the consequences can be severe. Having a clean record is important in order to take advantage of opportunities like getting into a good college or landing a good job.

The First Judicial District of Pennsylvania, in conjunction with the Philadelphia District Attorney’s Office has created “diversion” programs to divert a criminal case from the path towards trial to a potential resolution that will be more favorable to the person charged. When criminal charges are diverted, it allows the Philadelphia District Attorney’s Office to utilize its limited resources in a more effective manner with the goal of prosecuting more serious crimes. One such program is the Philadelphia “Summary Diversion” Program.

The majority of defendants charged with a summary citation who have not previously participated in the Summary Diversion program are eligible, with the exception of the following charges due to the nature of the charge:

  • Cruelty to Animals;
  • Criminal Mischief;
  • Cutting Weapons;
  • Weapons in general including

In addition, any defendant issued citations by any of the following four agencies also are not permitted to enroll and are automatically scheduled for trial in Philadelphia Municipal Court:

  1. Pennsylvania SPCA (Society for the Prevention of the Cruelty to Animals)
  2. Pennsylvania Department of Agriculture
  3. Pennsylvania Vehicle Fraud Investigations
  4. Pennsylvania Department of Revenue (which handles financial benefits and welfare fraud).

There are exceptions to this general rule, and sometimes my law firm may be able to secure the agreement of the Philadelphia District Attorney’s Office in resolving a Criminal Mischief charge, for example, through the Summary Diversion Program (SDP).

If a defendant’s case is approved for the SDP, the defendant will not enter a plea. Upon successful completion of the program, the Philadelphia District Attorney’s Office will withdraw prosecution of the criminal charges against the defendant.

Defendants accepted into the Philadelphia SDP attend the program on a Saturday. The program takes place at the Philadelphia Criminal Justice Center located at 1301 Filbert Street, Philadelphia, PA 19107. The cost of the Summary Diversion Program is $200, and full payment must be made by money order and payable on the day the defendant attends the program.

For example if you are facing a first time Philadelphia underage drinking or a Philadelphia fake ID charge, the Philadelphia Municipal Court will amend the charge to disorderly conduct and the defendant will not lose their driver’s license as would be the case if a person, often a college student, is convicted or pleads guilty to underage drinking or possessing a false ID.  You can then qualify for the and complete the SDP and get the charge expunged

A defendant’s case will be automatically expunged after successful completion of the Summary Diversion Program (SDP), but it can take up to nine months.

The reason the SDP is better than other Philadelphia diversion programs such as the Accelerated Misdemeanor Program or Accelerated Rehabilitation Disposition is that a person in the SDP isn’t required to serve any type of probation, but only complete the one day class.

If you have any questions or are charged with a crime contact Gregory J. Spadea at 610-521- 0604.

Courtroom Appearance Really Matters

Man wearing suit

Clients often ask how they should act and what they should wear when appearing in court. As a general rule your overall appearance and that of your defense counsel should always try to convey trustworthiness and credibility.

With regards to your actions in the courtroom, you should be prepared to testify and understand what the prosecution is going to question you about and what he must prove to meet his burden of proof. In addition to the obvious content of your testimony, you should understand that it is not only what you say but how you say it, including the tone of your voice, how quickly you speak and always maintaining eye contact. It is also a good idea to be aware of your conduct when sitting next to your attorney. Understand that someone will always be watching you therefore wild outbursts, eye rolling and hand gestures are not unacceptable. Instead practice sitting calmly with a pad of paper and a pen and focus on listening. Your attorney also needs to listen to be effective so do not interrupt him. Interrupting him during opposing counsel’s direct examination or cross examination could cause him to lose his focus and miss a critical response. You should remain silent while writing down your questions and inconsistencies in the witness testimony and wait until the other attorney is finished questioning the witness before you speak to your attorney.

With regard to courtroom dress, I always wear a suit so I recommend a suit for men and a suit or a longer skirt for women. At the very least men should wear a collared shirt, a sports coat, and slacks. Women should avoid wearing anything too provocative. Neither men nor women should ever wear t-shirts, hoodies, sneakers, sandals, flip flops, or jeans. Men and women should wear conservative dress shoes and women should avoid open toe foot wear. Men should be clean shaven and well groomed. While a professional appearance will not necessarily make a bad case good, a poor appearance will just give the judge or jury one more reason not to believe or respect you. Do not underestimate the power of nonverbal communication. Your appearance and that of your witnesses creates a positive or negative impression. Appearance must reinforce your attorney’s arguments. In most cases your attorney may present a mistaken identity theory (it wasn’t my client) and so your appearance should reinforce the argument that you couldn’t have committed this type of crime because you don’t fit the part. Proper appearance can reinforce good character but it can also imply good character when your attorney can’t talk about it. The law understands that appearance and nonverbal communication matter. In their final instructions to a jury prior to their deliberations, judges tell jurors that they are permitted to use a person’s nonverbal responses and cues to determine credibility.

The bottom line is that appearance matters and preparation is critical, so be prepared and give the judge and jury every reason to like you. If you are charged with a crime contact Gregory J. Spadea online or at 610-621-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Understanding the Difference Between Robbery and Theft

Man Mugging Woman In Street

Robbery is a theft of money or personal property committed by force or threat of force. The key difference between robbery and theft is the use of some kind of force or the cause of some serious harm in taking the property from someone. The degree of force will determine the severity of the charge. Generally, the crime of robbery constitutes a third degree felony. However, if during the commission of the crime, the accused causes bodily injury to another person, the charge will be a second degree felony. If the accused seriously injures another person or puts them in fear of serious bodily injury, the crime constitutes a first degree felony. Also, if the accused commits a robbery of a motor vehicle while another person was in lawful possession of the vehicle, this is also a first degree felony.

Theft and Robbery are separate offenses and are normally charged together. Theft is taking the property of another without force. Theft from a store such as shoplifting is also called Retail Theft. Both Retail Theft and Theft are graded based on the value of the property stolen and whether the accused has any prior theft convictions. Theft offenses are graded as follows: If the value of the property is $500,000.00 or more, the charge is a first degree felony. If the value of the property is at least $100,000.00 but less than $500,000.00, the charge is a second degree felony. If the value of the property exceeds $2,000.00 but less than $100,000.00, then the theft charge is graded as a third degree felony. If the value of the property was at least $200.00 but equal to or less than $2,000.00, then the theft charge is graded as a first degree misdemeanor. If the value of the property was at least $50.00 but less than $200.00, then the theft charge is a second degree misdemeanor. If the value of the property was less than $50.00, then the theft charge is a third degree misdemeanor. The reason the grading is important is because it determines the number of years of incarceration the accused will serve if found guilty. The maximum penalty for a felony, misdemeanor and summary offenses are as follows:

Felony 1st Degree 20 years in prison
Felony 2nd Degree 10 years in prison
Felony 3rd Degree 7 years in prison
Misdemeanor 1st Degree 5 years in prison
Misdemeanor 2nd Degree 2 years in prison
Misdemeanor 3rd Degree 1 year in prison
Summary Offense 90 days in county jail

There are several defenses to Robbery such as:

  1. No theft was committed. Since robbery is a theft by force, if there is no theft committed, there is no robbery. Examples of actions that may be confused with theft include reclaiming property you own, or taking property that you believed to be your own.
  2. No injury occurred or the victim was not placed in fear of injury. However, in most cases, merely being in fear of injury is sufficient for the prosecution to prove the element of force in a robbery charge.
  3. Intoxication, Entrapment, Duress. These three defenses can be used in many different criminal actions including robbery and theft. All three defenses try to show that a defendant is not guilty, even though the crime was committed.

If you are charged with Robbery or Theft contact Gregory J. Spadea at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Understanding the Difference Between Simple Assault and Aggravated Assault

Two men fighting

There are two categories of assault in Pennsylvania: simple assault and aggravated assault. Simple Assault is defined as when the accused attempts to cause or intentionally or recklessly causes bodily injury to another; negligently causes bodily injury to another with a deadly weapon or attempts to put another in fear of eminent serious bodily injury. Simple assault is further classified based on its severity. Simple assault is normally a second degree misdemeanor, unless it is committed during the course of a consensual fight when it is graded as a third degree misdemeanor, or if against a child under the age of twelve by an adult twenty-one years of age or older when it is graded as a first degree misdemeanor.

Aggravated Assault is when the accused attempts to cause or intentionally or recklessly causes serious bodily injury and is graded as a first degree felony. A second degree felony only requires bodily injury. The difference between assault being graded as a first degree felony and second degree felony is the word serious or an extreme indifference to human life. In addition any physical contact with a police or probation officer will always be charged as aggravated assault.

Some common defenses to Assault charges are lack of intent to harm, no bodily injury occurred, self-defense, provocation, insanity or intoxication but the intoxication cannot be voluntary.

While the difference between simple assault and aggravated assault may seem minor there is a dramatic difference in the potential sentences if the accused is found guilty. Especially since Aggravated Assault is either a 1st or 2nd degree felony. The maximum penalty for a felony, misdemeanor and summary offenses are as follows:

Felony 1st Degree 20 years in prison
Felony 2nd Degree 10 years in prison
Felony 3rd Degree 7 years in prison
Misdemeanor 1st Degree 5 years in prison
Misdemeanor 2nd Degree 2 years in prison
Misdemeanor 3rd Degree 1 year in prison
Summary Offense 90 days in county jail

If you are charged with Assault, call Gregory J. Spadea at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Understanding the Difference Between Burglary and Criminal Trespass

intrusion of a burglar in a house inhabited

Burglary is the unauthorized entry into a building with the intent to commit a crime. If the building can accommodate overnight stays then the accused commits a felony of the first degree. In all other cases burglary is considered a second degree felony. A typical defense to burglary is that the building was abandoned at the time that the individual entered it. In addition, the prosecution must demonstrate that the accused actually intended to commit a crime after he entered the premises. Intent to commit a crime is often established through circumstantial evidence and may be shown by the accused actions, circumstances or any inferences therefrom. For example if the accused took a television from the building that could establish his intent to steal after he entered the building without the consent of the owner. Conversely, if the accused was intoxicated that could be a defense because he would be unable to form the intent to commit a crime.

Criminal trespass is when the accused enters or remains in a building without the consent of the owner or refuses to leave after being told to do so. Criminal trespass, like burglary is also a felony of the second or third degree based on the level of force used to enter the premises. If the individual breaks in, it is a 2nd degree felony and all other types of entry are considered a 3rd degree felony. Criminal trespassing can also be a misdemeanor where a court finds that an individual simply entered the premises without permission or refused to leave. However, such a trespasser faces incarceration after four convictions.

The reason the grading is important is because it determines the number of years of incarceration the accused will serve if found guilty. The maximum penalty for a felony, misdemeanor and summary offenses are as follows:

Felony 1st Degree 20 years in prison
Felony 2nd Degree 10 years in prison
Felony 3rd Degree 7 years in prison
Misdemeanor 1st Degree 5 years in prison
Misdemeanor 2nd Degree 2 years in prison
Misdemeanor 3rd Degree 1 year in prison
Summary Offense 90 days in county jail

If you are charged with Burglary or Criminal Trespass contact Gregory J. Spadea at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Police Cannot Search The Digital Information on a Cell Phone Without A Warrant

One hand holding a smartphone.

On June 25, 2014, the Supreme Court in a unanimous decision, ruled that police may not, without a search warrant, search digital information on a cell phone seized from an individual who has been arrested. The Court settled two conflicting cases Riley v. California and United States v. Wurie. In the Riley case, the Ninth Circuit Court of Appeals found that the search of the cell phone was permissible as a valid search incident to arrest, as it was “immediately associated” with his “person” when he was arrested. Because the cell phone was on Riley’s person when he was arrested, the police were justified in performing a full search incident to his arrest. In the Wurie case the First Circuit Court of Appeals held that warrantless cell phone data searches are unlawful under the search incident to arrest exception. It noted that the government failed to demonstrate that a cell phone search under such circumstances was necessary to promote officer safety or prevent the destruction of evidence. The fact that the officers had Wurie’s keys and his cell phone which they used to locate and enter his apartment without a warrant to “freeze” it while they obtained a search warrant was unconstitutional.

The Supreme Court in reviewing both cases indicated that the search incident to arrest exception to the Fourth amendment warrant requirement is inaccurate because warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant. The opinion then laid out a discussion of the handful of Supreme Court precedent in the search incident to arrest area, beginning with the seminal case limiting the scope of a search incident to arrest, Chimel v. California, 395 U.S. 752 (1969) (disallowing the search of an arrestee’s home even where he is arrested therein), and United States v. Robinson, 414 U.S. 218 (1973) (permitting the search of a cigarette pack found on the arrestee’s person at the time of arrest). The Supreme Court applied a balancing test for warrantless searches, which compares the degree to which a warrantless search intrudes upon an individual’s privacy versus the degree to which the warrantless search is needed for the promotion of legitimate governmental interests, the opinion discussed the difference between the search of digital information contained in a cell phone and the search of physical objects like the cigarette pack in the Robinson case. The Court then discussed the two rationales weighing in favor of permitting a search incident to arrest established in the Chimel case and followed in the Wurie case, to promote officer safety or prevent the destruction of evidence. As for the need to uncover and disarm weapons from a defendant, the court held that law enforcement officers are still free to search the physical aspects of a cell phone to make sure there are no physical threats. However, the digital information contained with a cell phone poses no physical danger to a police officer. Then, as for the interest of preventing the destruction of evidence, the Court held that there is not much of a threat of this, and that there are reasonable, cost-effective options available to law enforcement which can ensure that data will not be lost if they thereafter choose to apply for a search warrant.

Contact Our Office

If you are ever arrested or have your cell phone confiscated by police call Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604, located in Ridley Park, Pennsylvania.

Bail Requirements in Pennsylvania

Money and a gavel

If you get arrested please remember my silence is golden rule – do not give any statements or speak to anyone without your attorney present. Do not even discuss the facts of the case over the phone with your family, since most conversations in a correctional facility are recorded. Do not apologize, express regret or anything that makes you sound guilty.

It normally takes 24 to 48 hours for the District Justice in the town you were arrested in to set bail. Bail will be based on the severity of the crime, the number of counts and if this is your first offense. If the District Justice reviews all the factors above and finds that you have no criminal record and you are neither a flight risk nor a danger to the community, the District Justice may release you on a personal recognizance bond. That means you are released on your signature.

The specific purpose of a bond is to assure that you appear at court and answer the charges. A District Justice may consider “the nature and circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender and the danger to the community.” U.S. v. Salerno, 481 U.S. 739 (1987). Prior criminal history and your personal characteristics are the most important factors the District Justice uses to set the bail amount. Your prior criminal history is going to involve anything you have ever been arrested for. It doesn’t matter if you were a juvenile or if it happened in another state. The District Justice can review anything that may help in determining if you are a danger to the community. When examining the characteristics of a defendant, the judge will want to know if you have a job, and how long have you been working for that employer. Do you own a home or rent? Are you married? Do you have any children? Where did you go to high school? What are your ties to the community? In other words, how much skin do you have in the game and how much will you lose if you decide to run? The judge will weigh all these factors to determine how high the bond will be. Obviously, the more serious the crime, the higher the bond.

You may not be entitled to bail if you are already on probation or parole for another offense. Probation is court supervision in lieu of incarceration. Parole is early release from prison for good behavior. In both cases, committing a new offense is considered a new violation. Under these conditions you may be given a bond on the new violation but may be held with no bond on the old offense since you violated the condition s of your probation or parole. However, your lawyer may be able to persuade the District Justice for a bond on the old case based on your specific facts and circumstances.

Immigration status is another factor that may affect your ability to get a bond. If you are not a U.S. citizen, Immigration and Customs Enforcement may place a detainer on you until your case is adjudicated. This includes legal permanent residents who are in the United States with a valid visa or green card. If you are arrested or have any questions about bail, please call Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Avoiding Intent to Distribute Mandatory Minimum by Pleading Simple Drug Possession in Pennsylvania

Fingerprinted due to a drug arrest

Many individuals believe that to be convicted of a crime involving illegal drugs, weapons, or any other type of contraband a person must actually possess the item on their person, which is simply not the case. In fact actual possession is not a requirement for a conviction. The prosecution can meet its burden of proof of guilt beyond a reasonable doubt, based on the concept of constructive possession. While constructive and actual possessions are very different, a person is subject to the same criminal penalties if they are convicted including mandatory minimum sentences.

Constructive possession requires that the prosecution show that (1) the individual had the power to exercise control over the item and (2) the individual had the intent to do so. While the mere possession of an item in the area where an individual is arrested is not sufficient, the prosecution can use other factors which could lead to a conviction. For example, items found in an individual’s trunk can be problematic for a defense attorney if the car is registered to the individual or the prosecution can show that the individual was the exclusive user of the car.

The same rule would apply to apartments, bedrooms, or living areas. Evidence helpful to the defense would be equal access or control to the areas in question. However, equal access such as multiple roommates having keys to the apartment is a double edged sword as law enforcement can bring charges against every roommate who had access to the illegal drug. While the mere presence of an illegal item is not enough to convict a person, your defense attorney must make that argument and persuade a judge or jury.

It is important to keep in mind, however, that even if a person is found to constructively possess any illegal drugs the weight itself is not enough to trigger a mandatory minimum sentence. The prosecution must still establish intent to distribute the items. Therefore prosecutors try to focus on the item’s packaging and other paraphernalia found near the items or on the individual’s area of immediate control. However, there is a substantial difference between a conviction for drug distribution and simple possession. In Pennsylvania, simple possession is a misdemeanor whereas intent to distribute is a felony with a mandatory minimum sentence.

Since simple drug possession is a misdemeanor, it is possible to qualify for an intervention program like Veterans Court, Drug Court, Home Confinement or the Accelerated Rehabilitative Disposition Program if it is your first offense and other factors.

If you are arrested for possession or on any drug related charge, please contact Gregory J. Spadea online or at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Illegal Drugs That Trigger Mandatory Minimum Sentences in Pennsylvania

Illicit drugs and paraphernalia

A person does not need to be convicted of having a large quantity of drugs to be subject to the mandatory minimum nor does the person need to actually possess the illegal drugs on their person. All drugs are not treated equally and here is a list of illegal drugs along with the weight required to trigger mandatory minimum sentences.

Marijuana

  • 2 lbs. to < 10 lbs. or 10 to < 21 live plants - 1st conviction is 1 year, subsequent conviction is 2 years.
  • 10 lbs. to < 50 lbs. or 21 to 51 live plants - 1st conviction is 3 years, subsequent conviction is 4 years.
  • 50 lbs. or more or 51 live plants or more – 1st conviction is 5 years subsequent conviction is 5 years.

Heroin

  • 1 gram to < 5 grams - 1st conviction is 2 years, subsequent conviction is 3 years
  • 5 grams to < 50 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 50 grams or more – 1st conviction is 5 years, subsequent conviction is 7 years

Cocaine

  • 2 grams to < 10 grams - 1st conviction is 1 years, subsequent conviction is 3 years
  • 10 grams < 100 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 100 grams or more – 1st conviction is 4 years, subsequent conviction is 7 years

Methamphetamine

  • 5 grams to < 10 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 10 grams to < 100 grams - 1st conviction is 4 years, subsequent conviction is 7 years
  • 100 grams or more – 1st conviction is 5 years, subsequent conviction is 8 years

Amphetamine such as ecstasy

  • 5 grams or more – 1st conviction is 2.5 years, subsequent conviction is 5 years

Methaqualone

  • 50 tables to < 200 tablets or 25 grams to < 100 grams - 1st conviction is 1 year, subsequent conviction is 3 years.
  • 200 tablets or more or 100 grams or more – 1st conviction is 2.5 years, subsequent conviction is 5 years.

School Zone

  • Use, possession, or delivery of drug paraphernalia near a school by non-student (unless it relates to less than 0.5 oz. of marijuana) – 1st conviction is 1 year in addition to any imprisonment for the underlying drug crime.

If you are arrested and convicted of possessing any of the drugs listed here you may still avoid the mandatory minimum as long as the prosecution does not charge you or prove you intended to distribute the drug. Then you may qualify for an intervention program such as Veterans Court or home confinement or through the Accelerated Rehabilitative Disposition Program depending on if it is your first offense and other factors.

If you are arrested for possession or on any drug related charge, please contact Gregory J. Spadea online or at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Admissibility of Hearsay Evidence at a Pennsylvania Preliminary Hearing

Preliminary Hearing

Hearsay is an out of court statement offered for the truth of a matter asserted by the party attempting to introduce it into evidence. Generally, hearsay is not admissible at trial because it is considered unreliable given that the speaker was not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this blog is to explain the admissibility of hearsay at a preliminary hearing.

At a preliminary hearing a magistrate judge determines if a crime was committed and if the accused was connected to the crime. The evidentiary threshold at a preliminary hearing is the preponderance of evidence standard which is far below the criminal trial standard of proof beyond a reasonable doubt. However, the preponderance of the evidence standard means that more than likely the defendant was connected to the crime. Procedurally, the preliminary hearing is the first screening of a crime and its function is not to try the defendant which is why it does not require the same high degree of proof or quality of evidence that is required at trial.

The prosecution and defense often use experts in presenting their case but those experts are usually not an issue during a preliminary hearing because the standard is simply if the accused is connected to the crime. DUI cases have caused significant controversy given that the “connection” to the crime is often established through the expert and not just the expert report. The expert report provides information of the accused Blood Alcohol Level (BAC) and the scientific method used to determine it. Defense attorneys have argued that a DUI prosecution requires the testimony of the expert as well as the introduction of the expert report, and without the expert testimony the expert report is inadmissible hearsay even with the lower evidentiary standard at the preliminary hearing. The defense argument is that the connection is the expert explaining the scientific method in the report which indicates intoxication which is the foundation for the charged offense. These arguments are usually made when the prosecution cannot present any police or civilian witness testimony of DUI impairment.

Despite these defense arguments there are several Pennsylvania Superior Court decisions that firmly hold that hearsay evidence is admissible for the purposes of a preliminary hearing. However, the testimony provided at the preliminary hearing form the basis of most pre-trial motions as well witness impeachment and assessing the credibility of testimony at trial. Although few cases are dismissed at the preliminary hearing stage, a strong defense argument often demonstrates the weaknesses in a case. Since the burden of proof at trial is beyond a reasonable doubt, if defense counsel can show the prosecutor the weaknesses in the prosecution’s case that may substantially reduce or eliminate the number and severity of the criminal charges against a defendant. If you need representation at a preliminary hearing please contact Gregory J. Spadea online or call our office at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

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